Photographer Sued Over Photo of Statue: Copyright Infringement?

MARK TERRY, ESQ.

A photographer created and commercially licensed a photograph of a well-known sculpture. Although the photograph was a two-dimensional image rather than a three-dimensional copy, the dispute raised the copyright owner’s exclusive right to prepare derivative works.

The Copyright Act defines a derivative work broadly as a work based on one or more preexisting works that has been recast, transformed, or adapted into another form.

A photograph of a sculpture can therefore incorporate protected expression from the sculpture while also containing original expression contributed by the photographer through lighting, composition, angle, framing, and timing.

The photographer may own copyright in those original photographic choices, but that ownership does not automatically eliminate the sculptor’s rights in the underlying work.

The key question becomes how much protectable expression comes from the original sculpture and how much comes from the photographer’s independent contribution.

Artists and photographers should be especially careful when photographing copyrighted works for commercial use. Permission or a license from the owner of the underlying work can prevent disputes over derivative rights and commercial exploitation.